Your Right to Know

WASHINGTON — Only hours before the law was to take effect, a Supreme Court justice last night
blocked implementation of part of President Barack Obama’s health-care law that would have forced
some religion-affiliated organizations to provide health insurance for employees that includes
birth control.

Justice Sonia Sotomayor’s decision came after a different effort by Catholic-affiliated groups
from around the nation. Those groups had rushed to the federal courts to stop today’s start of
portions of the Affordable Care Act, also known as Obamacare.

Sotomayor acted on a request from an organization of Catholic nuns in Denver, the Little Sisters
of the Poor Home for the Aged. Its request for an emergency stay had been denied earlier in the day
by a federal appeals court.

The government is “temporarily enjoined from enforcing against applicants the contraceptive
coverage requirements imposed by the Patient Protection and Affordable Care Act,” Sotomayor said in
the order. She gave government officials until 10 a.m. Friday to respond to her order.

The law requires employers to provide insurance that covers a range of preventive care, free of
charge, including contraception. The Catholic Church prohibits the use of contraceptives. That was
not acceptable to the nuns, said their attorney, Mark L. Rienzi.

“The Little Sisters are an order of Catholic nuns whose religious faith leads them to devote
their lives to caring for the elderly poor. Not surprisingly, they have sincere and undisputed
religious objections to complying with this Mandate,” Rienzi said.

The Obama administration had crafted a compromise, or accommodation, that attempted to create a
buffer for religiously affiliated hospitals, universities and social-service groups that oppose
birth control. The law requires insurers or the health plan’s outside administrator to pay for
birth-control coverage and creates a way to reimburse them.

But for that to work, the nuns would have to sign a form authorizing their insurance company to
provide contraceptive coverage, which still would violate their beliefs, Rienzi said.

“Without an emergency injunction, Mother Provincial Loraine Marie Maguire has to decide between
two courses of action: (a) sign and submit a self-certification form, thereby violating her
religious beliefs; or (b) refuse to sign the form and pay ruinous fines,” he said.

Sotomayor’s decision to delay the contraceptive portion of the law was joined by the U.S. Court
of Appeals for the District of Columbia Circuit, which also issued an emergency stay for
Catholic-affiliated groups challenging the contraceptive provision. But one judge on the
three-judge panel that made the decision, Judge David S. Tatel, said he would have denied their
motion.

“Because I believe that appellants are unlikely to prevail on their claim that the challenged
provision imposes a ‘substantial burden’ under the Religious Freedom Restoration Act, I would deny
their application for an injunction pending appeal,” Tatel said.

A spokeswoman for the Becket Fund for Religious Liberty, the lead counsel for the Little Sisters
of the Poor, said the group was delighted by Sotomayor’s order. “The government has lots of ways to
deliver contraceptives to people,” Emily Hardman said in a statement. “It doesn’t need to force
nuns to participate.”

Lawyer Noel J. Francisco, representing some Catholic groups in their Supreme Court appeals, said
that if Catholic organizations don’t comply with the law, they face “fines of $100 a day per
affected beneficiary” and if they drop their health-care coverage, “they will be subject to an
annual fine of $2,000 per full-time employee after the first

30 employees, and/or face ruinous practical consequences due to their inability to offer a
crucial health care benefit to employees.”